Parth Prateem Sahu, J.

1. The petitioners have filed this petition under Article 227 of the Constitution of India challenging the order dated 02.11.2022 passed in Civil Suit No. 49-A/2011 whereby the application filed under Order VI Rule 17 of CPC seeking amendment in the plaint was dismissed.

2. Learned counsel for the petitioners would submit that the petitioners initially filed suit for declaration of title and permanent injunction on the ground mentioned therein. During pendency of the Civil Suit, petitioners were dispossessed which made them to file application under Order VI Rule 17 of CPC seeking amendment in the plaint for possession, value of suit as also Court fee and further sought amendment in the relief clause seeking possession of the suit property from respondents-defendants. He contended that learned Court below failed to consider that plaintiffs No. 1 & 2 immediately after attaining the age of superannuation has filed suit in the year 2011 and the relief sought for amendment is within the period of limitation. But, the learned trial Court rejected the application in a very arbitrary manner. He places reliance upon the decision of Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. Sanjeev Builders Private Limited and Anr.

3. Learned counsel for respondents No. 1& 2 would submit that sale deed with which the property was sold in the name of respondents No. 1 & 2 was dated 09.09.2004. Civil Suit is filed in the year 2011 and the application for amendment is filed only on 06.08.2022. The relief claimed in the amendment of possession is barred by limitation. He further contended that in the application for amendment filed by the petitioners, there is no specific mention of date of dispossession , no reason has been assigned as to why the application for amendment is filed at belated stage after eleven years of the filing of suit. The trial is already commenced. Evidence is started and therefore in absence of explanation as appended to the proviso under Order VI Rule 17 of CPC, learned Court below has rightly rejected the application.

4. Learned counsel for the State submits that State is a formal party and it is respondents No. 1 & 2 who are contesting party.

5. To appreciate the submission of learned counsel for the petitioners, I find it appropriate to extract the relevant provision under Order VI Rule 17 of CPC for ready reference as under :-

"Order VI Rule 17 : Amendment of Pleadings:-The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

6. The provision under Order VI Rule 17 of CPC was amended which came into force w.e.f. 01.07.2002 and proviso is also added which provides that the Court has to record that in spite of due diligence, the parties could not have raised the matter before the commencement of trial. In the case at hand, the application seeking amendment of plaint has been filed after commencement of trial, case is at the stage of defendant evidence. Perusal of application under Order VI Rule 17 of CPC filed by the petitioners/plaintiffs would show that the ground mentioned in the application seeking amendment is that plaintiffs/petitioners have been dispossessed from the suit property during pendency of the suit. From perusal of the pleadings of the application under Order VI Rule 17 of CPC it is clear that the fact and relief which is sought to be amended in the plaint is the subsequent events which took place during pendency of the suit. Written statement filed by respondents No. 1 & 2/defendants No. 1 & 2 is placed on record as Annexure P-3. In para-1 of the written statement, there is categorical pleading to this effect. While denying the pleading made in para-12 of the plaint, there is specific pleading in para-11 of written statement that defendant No. 1 & 2/respondents No. 1 & 2 are in peaceful possession and doing agricultural activity over the purchased land. Written statement was filed on 17.06.2013. The plaintiffs/petitioners became aware of the fact that, over the disputed property, respondents No. 1 & 2/defendant No. 1& 2 are in possession, even then, they have not made any application seeking amendment in the pleading of the plaint. The petitioners to overcome with the proviso to Order VI Rule 17 of CPC has pleaded that they were dispossessed during pendency of civil suit which is agricultural property, but the petitioners/plaintiffs have not mentioned specific date of dispossession. Pleading in the application is very vague. For allowing the amendment, it is made mandatory that the Court has to come to conclusion that in spite of due diligence, the parties could not have raised the matter before commencement of trial.

7. Hon'ble Supreme Court in the case of J. Samuel and Ors. Vs. Gattu Mahesh and Ors. (2012) 2 SCC 300, [LQ/SC/2012/63] has observed thus:-

"19. Due diligence is the idea that reasonable investigation is necessary before certain kinds of relief are requested. Duly diligent efforts are a requirement for a party seeking to use the adjudicatory mechanism to attain an anticipated relief. An advocate representing someone must engage in due diligence to determine that the representations made are factually accurate and sufficient. The term "due diligence" is specifically used in the Code so as to provide a test for determining whether to exercise the discretion in situations of requested amendment after the commencement of trial.

20. A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term "due diligence" determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit.

21. In the given facts, there is a clear lack of "due diligence" and the mistake committed certainly does not come within the preview of a typographical error. The term "typographical error" is defined as a mistake made in the printed/typed material during a printing/typing process. The term includes errors due to mechanical failure or slips of the hand or finger, but usually excludes errors of ignorance. Therefore, the act of neglecting to perform an action which one has an obligation to do cannot be called as a typographical error. As a consequence the plea of typographical error cannot be entertained in this regard since the situation is of lack of due diligence wherein such amendment is impliedly barred under the Code."

8. In the case of Pandit Malhari Mahale Vs. Monika Pandit Mahale & Ors. (2020) 11 SCC 549, [LQ/SC/2020/45] Hon'ble Supreme Court while considering the appeal filed by the appellant/plaintiff, order of learned trial Court allowing the amendment application which was affirmed by the High Court, has observed thus:-

"7. In the present case, the Civil Judge has not returned any finding that the Court is satisfied that in spite of due diligence, the party could not have raised the matter before the commencement of trial. In Vidyabai & Ors. v. Padmalatha & Anr. (2009) 2 SCC 409 [LQ/SC/2008/2480] ], this Court observed in para 19 as under:-

"19. It is primal duty of the Court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order 6 Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

8. There being no finding by the Court that the Court is satisfied in spite of due diligence, the party could not introduce amendment before commencement of the trial, the order of the Trial Judge is unsustainable. The High Court has not adverted to the above aspect of the matter. In view of aforesaid, we allow the appeal and set aside the order of the High Court as well as of the Civil Judge, the amendment application stands dismissed."

9. In the case of Vidyabai and Ors. Vs. Padmalatha and Anr. (2009) 2 SCC 409, [LQ/SC/2008/2480] Hon'ble Supreme Court held as under :-

"10. By reason of the Civil Procedure Code (Amendment) Act, 2002 (Act 22 of 2002), the Parliament inter alia inserted a proviso to Order VI Rule 17 of the Code, which reads as under:-

"Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."

It is couched in a mandatory form. The court's jurisdiction to allow such an application is taken away unless the conditions precedent therefor are satisfied, viz., it must come to a conclusion that in spite of due diligence the parties could not have raised the matter before the commencement of the trial.

11. From the order passed by the learned Trial Judge, it is evident that the respondents had not been able to fulfill the said pre-condition. The question, therefore, which arises for consideration is as to whether the trial had commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to "commencement of proceeding".

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19. It is the primal duty of the court to decide as to whether such an amendment is necessary to decide the real dispute between the parties. Only if such a condition is fulfilled, the amendment is to be allowed. However, proviso appended to Order VI, Rule 17 of the Code restricts the power of the court. It puts an embargo on exercise of its jurisdiction. The court's jurisdiction, in a case of this nature is limited. Thus, unless the jurisdictional fact, as envisaged therein, is found to be existing, the court will have no jurisdiction at all to allow the amendment of the plaint."

10. Admittedly, in the case at hand, trial has begun as issues have been framed, evidence is started. The pleadings made in the written statement is very specific that the defendants No. 1& 2 are in possession of the suit property after its purchase and doing agricultural activities. Written statement has been filed on 17.06.2013 and in the application under Order VI Rule 17 of CPC filed on 06.08.2022, it is only pleaded that they were dispossessed during pendency of the suit without specifying date, month or year.

11. In the aforementioned facts of the case and considering the decision of Hon'ble Supreme Court in the cases as referred to above, I do not find any infirmity or error in the order passed by learned trial Court dismissing the application under Order VI Rule 17 of CPC.

12. The petition is accordingly dismissed.